TOPIC TWO: SOURCES OF INTERNATIONAL LAW

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1 TOPIC TWO: SOURCES OF INTERNATIONAL LAW Legal orders have mechanisms for determining what is a source of valid law. Unlike with municipal law, in PIL there is no constitutional machinery of formal law-making that sets out what the contents of the law is. There are four main sources of public international law recognised in article 38(1) of the ICJ statute, which is the most important statement of the contents of international law: Treaties Custom General principles of law Judicial decisions and the teachings of publicists Article 38 (1) is generally regarded as a complete statement of the sources of international law (per Brennan J, in Polyukhovich v Commonwealth) Consent by states to be bound by the law is central to the development of law; this can be found in treaties or custom. There is no clear hierarchy of sources: treaties do not necessarily override treaties or vice-versa: principles such as the later law prevails will be helpful. Remember that article 38 (1) is quite formal and doesn t give the full picture: it is much more dynamic than just being confined to those four sources. The consent source of international law is giving way to one where differences of opinion are channelled through multilateral institutions. SS Lotus (France v Turkey) facts: collision on the high seas between French and Turkish vessels.; caused by the negligent navigation of a French seaman; the Turkish municipal courts asserted criminal jurisdiction; France claimed in the PCIJ that there was an international rule against domestic courts asserting jurisdiction over foreign vessels on the high seas. The court held that there was no such rule. The restrictions upon the independence of states cannot be presumed. States must not exercise power in the territory of another state (the foremost rule of international law ) This does not preclude states from extending domestic jurisdiction of their courts outside their territory The facts that the alleged offence occurred upon a ship flying the French flag and by a French national do not preclude Turkey from exercising criminal jurisdiction over the captain The court examined publicists opinion as a broad body of work and found them not to support France s case The court was careful to distinguish separate cases (in particular, Costa Rica Packet (Great Britain v Netherlands) case)

2 Asylum Case (Colombia v Peru) Colombia granted asylum to a Peruvian revolutionary in its Lima embassy. It wanted to safely transport him to Colombia, but Peru did not allow it. Colombia argued in the PCIJ that there was a rule of customary international law allowing states to do this. The court held that there was no such rule. North Sea Continental Shelf Cases Denmark and the Netherlands argued that North Sea rights should extend equidistantly (such that Germany was squashed in the middle and didn t get much), as a matter of customary international law, set out in the 1958 Geneva Convention on the Continental Shelf. ICJ held that treaty provisions could transfer into custom, but this is not something to be presumed and did not happen in this case. Treaties Treaties are the main body of international law. Defined in the Vienna Convention on the Law of Treaties as an agreement between states, in writing, governed by international law. But this may be a bit too narrow treaties don t have to be in writing, for instance. However described : it doesn t have to be called a treaty; what matters is the substance, not the form. Treaties are the most important source of public international law. Despositive treaties are held to create legal relations even against non-signatiories. Multilateral treaties can also create customary international law. Custom Evidence of a general practice accepted as law. This includes both state practice and opinio juris. The state practice must be sizable and widespread enough to give way to a rule; the opinio juris is the subjective belief on the part of states that the practice is required as a matter of law. So customary international law has these two requirements. constant and uniform practice accepted as law Asylum Case (Colombia v Peru) The two required elements are outlined in the North Sea Continental Shelf Case (a) State practice Anything that a state does that reveals its choices or preferences can be used as evidence for a state practice. This primarily includes legislation, judicial decisions by domestic courts (especially the highest courts), speeches by state officials, diplomatic correspondence, military reports and manuals, etc. The next questions are about the kind and extent of custom. You need to demonstrate: Consistency of practice over time, although it need not be uniform (Nicaragua) The practice must be widespread The practice would have to be representative (that is, it must cover different sorts of states, and not just one kind). In particular, the practice must involve states specially affected by the rule (i.e. don t look at landlocked states for the law of the sea) North Sea Fisheries.

3 The practice must occur over a lengthy period (b) Opinio juris State officials rarely report the normative worth of potential customary rules, but there must nonetheless be an indication that the practice is not merely convenient or helpful, but that they are actually bound by law. n.b. opinio juris isn t as important as state practice especially when there is overwhelming state practice; indeed, overwhelming state practice may give rise to a rebuttable presumption in favour of a customary rule, save for opinio juris that demonstrably opposes the norm. General Assembly resolutions can be very important in determining opinio juris. Treaties can evidence opinio if it is of a fundamentally norm-creating character (North Sea Continental Shelf).This involves a lack of qualifications or ambiguity (Ibid). Custom can be generated by a relatively small number of states, yet when it is made, it will bind the entire international community, including those who have not participated in its communication. This is because silence can constitute tacit acceptance of a rule. There is a narrow exception to this: the persistent objector state. Where a state objects to the rule s existence from the emergence of the rule, they are excepted. You can also have regional custom, which binds only a few states. The Asylum Case (Colombia v Peru) accepted this idea in principle but placed a high bar on regional customary law (higher than customary law generally, where divergence is not fatal to the custom). Regina v Secretary of State for Defence confirmed the difficulties of establishing regional custom. Constant and uniform accepted as law Regina (Al-Saadoon and another) v Secretary of State for Defence (UK) Iraqi criminals were detained by the UK on behalf of the Iraqi authorities, in Iraq, and appealed their transfer to an Iraqi court, on the grounds that they were liable to be put to death Held there was no regional customary law prohibiting refoulement, or global customary law against hanging The court accepted the Asylum Case s conclusion that regional customary law is theoretically possible. The EU convention prohibiting the death penalty, and the documents preceding and surrounding it, were not sufficient to form a binding regional legal norm. It is little surprise that this commitment [i.e. a commitment against the death penalty] has been expressed in statements and texts other than the Convention and Protocol themselves. These statements cannot in my view suffice to establish a freestanding principle of customary law. (Laws LJ at [62]). That is, the fact that there is a common ideology and ambition throughout a region is not sufficient to demonstrate regional customary rules. North Sea Continental Shelf Case

4 Germany, the Netherlands, and Denmark on how to divide the continental shelf of the North Sea, and whether to use the equidistance method. Germany hadn t ratified the convention and therefore couldn t be directly held to it. Court decided that the contents of the relevant convention (in particular article 6) had not become customary international law, because: You should not likely presume that a treaty provision becomes an international customary rule (it can, but don t assume it has). The question is whether it is of a fundamentally norm-creating character. In this case, the fact that the rule had an uncertain meaning in its exceptions meant that it failed this test. The convention must be adopted in a (a) widespread and (b) representative way. It is possible for customary rules to emerge from treaties in a short amount of time, but in those circumstances the practice needs to be very extensive and virtually uniform. Military and Paramilitary Activities in and against Nicaragua (1986) This case is often seen as relaxing the requirements for customary norms. Nicaragua argued that the US had used force in their territory by laying mines and that the US was supporting the rebels in Nicaragua. US argued that the court had no jurisdiction because it had expressly excluded multilateral treaties in its acceptance of ICJ jurisdiction. The court decided that all relevant provisions of the charter (use of force, not intervening in another state, etc) were part of customary international law. The mere fact that they corresponded to the charter did not deprive them of a separate existence. So the court could determine the case on the basis of customary law. The substance of Nicaragua s argument turned on the nature of the customary rules. The ICJ decided that, in regard to general principles: The state practice need not be perfect. In this case, the existence of armed conflict does not detract from the normative strength of the rules in fact, it reinforces them. The fact that states appeal to exceptions or extraordinary justifications of a customary law when breaking it only serves to confirm its existence. The court decided in favour of Nicaragua. Importance of UN GA resolutions UN General Assembly resolutions are not legally binding, except with regard to internal administrative matters; however they do influence customary international law a lot, in three ways: They are useful interpretations of the UN charter They affirm recognised treaty norms They can create new customary norms The UNGA is much more expedient than multilateral treaty negotiation, which takes many years to negotiate (e.g. Rome Statute, Convention on the Law of the Sea). Persistent Objectors

5 A state that has persistently objected to the emergence of a customary norm can opt out of that rule. This requires that they oppose it from the inception of the rule and consistently thereafter. Anglo-Norwegian Fisheries Case UK objected to the fact that Norway just traced a straight baseline across its complicated western coast for the purposes of determining maritime territory. In particular, some parts of baselines crossed large bays. The ICJ found that there was no prohibition of this, and added that even if such a prohibition did exist, Norway would qualify as a persistent objector. General principles of law of civilised nations This is also included in Art 38(1) to avoid non liquet: the problem that the court cannot deal with an issue where there are no rules. They pertain to the conduct of judicial proceedings, the legal effect of undertakings by states, etc. They tend to have a dimension of natural law. They can be derived from international or domestic law. This includes: Estoppel: ARA Libertad (Argentina v Ghana) The ship calls into port in Ghana and the local authorities seize it in order to enforce a judgment of a New York court (regarding a default on bonds by Argentina). International Tribunal on the Law of the Sea had to decide whether warships sovereign immunity in the territorial waters of other states extends to ports under treaty. It is true that customary international law allows warships to have sovereign immunity in port. The tribunal said that the warship was immune. The minority judges said that Ghana was estopped from denying the immunity of the vessel due to its acceptance of the vessel in its port, on the basis that procedural estoppel is an accepted principle in international law (citing English common law). You have reliance and detriment. Case Concerning Documents and Data East Timor v Australia provisional (=interlocutory) case. Admitted the possibility of accepting legal professional privilege as a part of international law. Judicial decisions and academic writings Art 38(1)(d) calls it a subsidiary means to determining the law. It includes international and national courts. There has been significant growth in judicial decision-making: the ICJ and other international courts have plenty of cases, and domestic courts are increasingly considering international legal issues. Other courts and tribunals pay deference to ICJ precedent, which is significant. The informal use of precedent goes beyond Art 38(1)(d). Academic writings used to be extremely important in international law. This is less the case today, because the material sources are much more substantive. Other...? A lot of lawmaking goes on outside Art 38. This is often called soft law. This includes a lot of non-legally-binding instruments adopted by states which are not treaties. It includes conference

6 declarations, UN general assembly resolutions, interpretations of treaties by human rights bodies, codes of conduct, recommendations, guidelines, international standards, etc. It gives some scope to non-state actors to develop the law.